Citation Nr: 0620618
Decision Date: 07/14/06 Archive Date: 07/21/06
DOCKET NO. 02-11 656 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for a right knee condition.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Daniel Markey, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1944 to July
1946.
The matter is before the Board of Veterans' Appeals (Board)
from a rating decision promulgated by the Department of
Veterans Affairs (VA) Regional Office (RO) in March 2002,
which denied the claim for service connection.
When the case was previously before the Board in May 2004 and
August 2005, the Board remanded the issue of service
connection for a right knee condition for additional
development. That development has been completed to the
extent possible, and the case returned to the Board for
further consideration of the veteran's appeal.
The veteran provided testimony at a Travel Board hearing
conducted by the undersigned Veterans Law Judge in June 2005,
a transcript of which is on record. The undersigned Veterans
Law Judge also granted the appellant's motion to advance his
claim on the Board's docket at this hearing.
FINDINGS OF FACT
1. All reasonable development and notification necessary for
an equitable disposition of the instant case has been
completed.
2. The preponderance of the competent medical evidence
indicates that the veteran did not suffer from a chronic
right knee disability in service, or for many years
thereafter.
3. The preponderance of the competent medical evidence is
against a finding that the veteran's current right knee
condition is causally related to his active service.
CONCLUSION OF LAW
A right knee disability was not incurred in or aggravated by
active service, nor may arthritis be presumed to have been so
incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112,
1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002) redefined VA's duty to assist the veteran in the
development of a claim. VA regulations for the
implementation of the VCAA were codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005).
The notice requirements of the VCAA require VA to notify the
veteran of any evidence that is necessary to substantiate his
claim, as well as the evidence VA will attempt to obtain and
which evidence he is responsible for providing. Quartuccio
v. Principi, 16 Vet. App. 183 (2002). The requirements apply
to all five elements of a service connection claim: veteran
status, existence of a disability, a connection between the
veteran's service and the disability, degree of disability,
and effective date of the disability. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). Such notice must be
provided to a claimant before the initial unfavorable
decision on a claim for VA benefits by the agency of original
jurisdiction (in this case, the RO). Id; see also Pelegrini
v. Principi, 18 Vet. App. 112 (2004). However, the VCAA
notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant. Id.
In this case, in an October 2005 letter, the RO provided
notice to the veteran regarding what information and evidence
is needed to substantiate the claim, as well as what
information and evidence must be submitted by the veteran,
what information and evidence will be obtained by VA, and the
need for the veteran to advise VA of or submit any further
evidence in his possession that pertains to the claim. The
case was thereafter readjudicated in the March 2006
Supplemental Statement of the Case.
The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
veteran. Specifically, the information and evidence that
have been associated with the claims file includes the
veteran's service medical records, private medical records,
VA examination reports, lay statements, and a hearing
transcript.
As discussed above, the VCAA provisions have been considered
and complied with. The veteran was notified and aware of the
evidence needed to substantiate this claim, the avenues
through which he might obtain such evidence, and the
allocation of responsibilities between himself and VA in
obtaining such evidence. There is no indication that there
is additional evidence to obtain, there is no additional
notice that should be provided, and there has been a complete
review of all the evidence without prejudice to the
appellant. As such, there is no indication that there is any
prejudice to the appellant by the order of the events in this
case. See Pelegrini, supra; Bernard v. Brown, 4 Vet. App.
384 (1993). Moreover, as the Board concludes below that the
preponderance of the evidence is against the appellant's
claim for service connection, any question as to an
appropriate evaluation or effective date to be assigned is
rendered moot. Any error in the sequence of events or
content of the notice is not shown to have any effect on the
case or to cause injury to the claimant. Thus, any such
error is harmless and does not prohibit consideration of this
matter on the merits. See Dingess, supra; see also ATD Corp.
v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
Analysis
The Board has reviewed all the evidence in the appellant's
claims file. Although the Board has an obligation to provide
adequate reasons and bases supporting this decision, there is
no requirement that the evidence submitted by the appellant
or obtained on his behalf be discussed in detail. Rather,
the Board's analysis below will focus specifically on what
evidence is needed to substantiate a claim for service
connection, and what the evidence in the claims file shows,
or fails to show, with respect to this claim. See Gonzales
v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and
Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Evidence of continuity of symptomatology from the time of
service until the present is required where the chronicity of
a condition manifested during service either has not been
established or might reasonably be questioned. 38 C.F.R. §
3.303(b). Regulations also provide that service connection
may be granted for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disability was incurred in service. 38
C.F.R. § 3.303(d).
In addition, where a veteran served continuously for ninety
(90) days or more during a period of war, or during peacetime
service after December 31, 1946, and arthritis becomes
manifest to a degree of 10 percent within one year of date of
termination of such service, such disease shall be presumed
to have been incurred in service, even though there is no
evidence of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002);
38 C.F.R. §§ 3.307, 3.309 (2005).
In order to establish service connection for the claimed
disorder, there must be medical evidence of a current
disability; medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999).
The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2005).
When there is an approximate balance of positive and negative
evidence regarding a material issue, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274
F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102 (2005).
If the Board determines that the preponderance of the
evidence is against the claim, it has necessarily found that
the evidence is not in approximate balance, and the benefit
of the doubt rule is not applicable. Ortiz, 274 F.3d at
1365.
The veteran asserts that he currently suffers from a right
knee disability that was incurred during a fall from a wall
in basic training. As will be explained below, however, the
record contains no evidence of a right knee injury or disease
in service or for many years thereafter and no evidence that
the veteran's right knee arthritis manifested within one year
from discharge from service. Moreover, the preponderance of
the competent medical evidence fails to link the veteran's
claimed condition to service.
Service medical records include an outpatient note from
August 1945 where the veteran sought treatment for bursitis
of the shoulder, but also mentioned a history of joint pain
in the knees. Records are otherwise negative for any
reference to disease or injury of the right knee during
service. The veteran's discharge examination does not
address a knee condition.
Shortly after service, in March 1947, the veteran underwent a
VA orthopedic examination. Shoulder, ankle, and left knee
conditions were the only residuals attributed by the veteran
to an obstacle course fall. This report was taken only 9
months following discharge. Moreover, multiple lay
statements and a private medical report submitted around the
same time as the March 1947 VA examination do not discuss any
disability of the right knee.
The veteran asserts in written statements and oral testimony
that his right knee condition was caused by injury that
happened when his left knee injury happened, that being the
fall during basic training. The veteran has also submitted a
lay statement from O.J., Jr. detailing the veteran's history
of disability, to include injury both knees in service.
The Board finds that the lack of chronic complaints or
treatment regarding the right knee in service, and the
temporal proximity of the March 1947 examination report,
private report and lay statements to the veteran's service,
to be more probative in establishing the alleged injuries and
residuals suffered by the veteran at the time of his fall in
1944, than recollections by the veteran and his friend more
than 50 years after-the-fact. See Madden v. Gober, 123 F.3d
1477, 1481 (Fed. Cir. 1997) (the Board is entitled to
discount the weight, credibility, and probity of evidence in
light of its own inherent characteristics and its
relationship to other items of evidence).
In fact, the first objective medical evidence of a chronic
right knee condition appears in the form of an arthritis
diagnosis from July 2000, almost 54 years following the
veteran's discharge from active service. See Mense v.
Derwinski, 1 Vet. App. 354, 356 (1991) (The normal medical
findings at the time of separation from service, as well as
the absence of any medical records of a diagnosis or
treatment for many years after service is probative evidence
against the claim.). This diagnosis was based on a review of
x-rays, and there is no attribution of the veteran's
condition to anything other than degenerative changes.
Private medical records from July 2000 through February 2005
note the veteran gave a history of injury to his right knee
in service. However, the veteran's physician specifically
declined to address the etiology of the veteran's right knee
disorder, stating he would not "get involved in" the
veteran's dispute with VA.
The only medical evidence providing a competent medical
opinion regarding the relationship between his right knee
disorder and service is a VA examination report from May
2005. That examination found only minimal degenerative joint
disease of the right knee. The examiner noted a review of
the claims file and medical history. He stated that the
veteran's arthritis is compatible with the veteran's age, and
that "the veteran currently demonstrates no residuals of a
right knee injury." As this opinion was provided following a
review of the claims file and examination of the veteran, and
is provided by an orthopedic surgeon, the Board finds this
opinion to be highly probative and entitled to great weight.
During the veteran's June 2005 hearing, his representative
stated that the VA examiner who provided the May 2005
examination opined that the veteran's right knee condition
was related to service. This statement is not correct. No
such opinion was rendered with respect to the right knee,
although the examiner did attribute other disabilities to the
in-service fall. In fact, there is no competent medical
evidence which associates the veteran's current degenerative
changes in the right knee with military service.
While the Board notes the veteran sincerely believes that his
right knee disorder is related to service, nothing on file
shows that the veteran or his friend have the requisite
knowledge, skill, experience, training, or education to
render a medical opinion. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992). Consequently, while both are competent
as a layperson to describe the veteran's symptomatology,
their statements cannot constitute competent medical evidence
regarding etiology of his current disability.
In summary, the evidence does not show the veteran suffered
from a chronic right knee disability in service, or for many
years thereafter. Moreover, the preponderance of the
evidence is against a finding that the current right knee
disorder is related to service. Therefore, a grant of
service connection for a right knee condition is not
warranted.
In reaching the conclusions above the Board has considered
the applicability of the benefit of the doubt doctrine.
However, as the preponderance of the evidence is against the
veteran's claim, that doctrine is not applicable in the
instant appeal. See generally Gilbert v. Derwinski, 1 Vet.
App. 49 (1990); Ortiz, 274 F. 3d at 1365.
ORDER
Service connection for a right knee condition is denied.
____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs